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Appeal ground 2
Appeal ground 2
Irrespective of what it decided about Clearview’s clients, the FTT made an error of law in holding that Clearview’s own processing fell outside the scope of Union law.
The ICO argued four sub-grounds within appeal ground 2:
Sub-ground 1: the FTT failed to have regard to the fact the EN and MPN were directed at Clearview’s own processing and not the processing by its clients;
Sub-ground 2: the FTT failed to address Clearview’s specific activities in the course of which its relevant processing took place (namely Activity 1 and Activity 2);
Sub-ground 3: the FTT reached a conclusion that involved reading Article 2 and / or Article 3 of the GDPRs as if additional wording had been inserted into those provisions; and
Sub-ground 4: the FTT reached a conclusion that would lead to an obvious anomaly and indeed absurdity in the application of Article 2(2)(d) GDPR but disregarded this when interpreting Article 2.
Appeal ground 3
The FTT was wrong to hold that Clearview itself did not carry out behavioural monitoring.
- Heading
- The decision of the Upper Tribunal is to allow the appeal The decision of the First-tier Tribunal made on 17 October 2023 was materially in error of law. It is SET ASIDE under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (“TCEA
- REASONS FOR DECISION
- Introduction
- The decision under appeal
- A summary of the relevant factual background
- The FTT’s decision
- The FTT’s findings of fact
- The FTT’s conclusions
- The issues in this appeal
- Appeal ground 1
- Appeal ground 2
- Appeal ground 4
- Additional Reason 1
- The scope of the appeal - admitting the additional reasons arguments for consideration
- Permitting Privacy International to intervene in the appeal
- Permitting Clearview to rely on a written reply to Privacy International’s skeleton argument
- Reliance on the evidence filed by Privacy International
- Reliance on legal arguments not raised before the FTT
- Legal framework
- Relevant legislative provisions
- The GDPR
- The UK GDPR
- “Article 2 This Regulation applies to the automated or structured processing of personal data, including
- 1A. This Regulation also applies to the manual unstructured processing of personal data held by an FOI public authority This Regulation does not apply to
- “Article 3
- The 95 Directive
- The Law Enforcement Directive
- State immunity and foreign act of state
- Material scope: the caselaw
- Territorial scope: the caselaw
- The Travaux in respect of the GDPR
- The EDPB Guidelines
- Data subjects in the Union
- The burden of proof in appeals against ICO Notices
- Analysis
- The parties’ positions on material scope in brief
- What the FTT decided in relation to Article 2(2)(a)
- General approach to construction of the GDPRs
- Domestic authorities on comity, extra-territoriality and utility
- EU authorities on extra-territorial effect and comity
- Certainty and foreseeability
- Proportionality
- EU law authorities on the construction of Article 2(2)(a) of the GDPR
- Relevant comity principles
- Our construction of Article 2(2)(a)
- Analysis of Clearview’s proposed intersectional construction
- Alternative analysis based on the ICO’s construction
- Would regulation of Clearview’s data processing breach comity principles?
- Article 3(2)(b) GDPR: territorial scope
- What was the policy objective behind Article 3(2)(b)?
- The meaning of “related to” in Article 3(2)(b)
- The meaning of “behavioural monitoring” in Article 3(2)(b)
- Ground 1
- Ground 2
- Ground 3
- Ground 4
- Clearview’s Additional Reasons
- Additional Reason 1
- Additional Reason 2
- Additional Reason 3
- Additional Reason 4
- Conclusions